Tuesday, August 6, 2013

Another Homosexual Marriage Splits

When Jason Dottley and his husband ended their marriage last year,
neither bothered to hire a lawyer because the couple agreed they had
nothing to fight over.
“Lawyers are what you get when things get difficult,” Dottley figured.
He had no idea just how difficult getting a same-sex divorce would be.
Dottley,
an actor and singer, filed for divorce in April 2012 in California,
where the court system was unfamiliar with how to handle his case. He
eventually sought an attorney’s advice after growing frustrated with the
numerous delays.
“The lawyer I hired really couldn’t offer much
help,” he said. “His advice was basically, you can either keep plugging
away or you can pay me to plug away, but until the courts figure out
what they’re doing, I can’t speed this along for you any more than you
can.”
It’s a story familiar to a growing number of same-sex
couples, even as the gay community continues to celebrate the Supreme
Court's decision in June to strike down the Defense of Marriage Act.
Many hope the ruling will encourage more states to legalize gay
marriage, which is currently only legal in 13 states as well as the
District of Columbia.

Getty Images file

In happier times: Dottley and his former husband, Del Shores, in 2010.

But
because gay marriage is relatively new — Massachusetts became the first
state to legalize it in 2004 — same-sex couples trying to get divorced
have found their attempts come with high price tags and other expensive
sacrifices in the few states even willing to grant them.
“Gay and
lesbian couples have had to be pioneers," said Susan Sommer, director of
constitutional litigation for Lambda Legal, an advocacy group devoted
to gay, lesbian, bisexual and transgender legal issues. "Until things
get familiar, even in states like New York, where same-sex couples can
marry, initially there will be a sense of, 'How do we do this?'”Time together: Reality vs. legality
Many
same-sex couples were together for years, even decades, before they
were allowed to marry. That can be an expensive problem in a divorce, as
most courtrooms will only divide assets starting from the time a couple
actually got married.
“A same-sex couple may have only been
married for so many years, but that doesn’t mean they weren’t married in
their hearts for much longer — and already co-mingled their assets or
bought property together,” said Carolyn Satenberg, a New York-based
family law attorney who has worked with many couples in this situation.
That’s
what happened to Margaret Wenig. The New York-based rabbi got divorced
earlier this year from a woman she married in 2008, and with whom she
had registered as a domestic partner in 1996.
“But for the 17
years prior to our civil marriage, we lived as if we were married,” she
said. “We raised children together, we merged our finances, we made each
other the beneficiaries of our pensions and life insurance policies and
in our wills.”
The two women were also executors and health care
proxies for each other, and gave each other power of attorney. When they
split, however, the court would only divide assets accumulated starting
from when the couple married in 2008.
“Our divorce has not only
been an emotional and financial nightmare for us but for our adult
children and members of our extended family as well,” Wenig said.
While
the cost of divorce varies by city and state, Satenberg estimates that a
traditional, heterosexual divorce in New York typically costs in the
neighborhood of $10,000; Wenig said her divorce cost her over $120,000.Location, location, location
Last
week, Minnesota and Rhode Island became the latest of only 13 states to
legalize same-sex marriages. Because so few states recognize gay
marriages, same-sex couples have often traveled some distance to make
their unions official, and don’t live in the states where they got
married.

mavrixphoto.com

Jason Dottley and his former husband Del Shores, pictured in 2008 when they obtained their marriage license.

Since
divorce is usually granted to couples by the state where they live,
states that do not recognize gay marriages typically won’t grant a
divorce to a couple whose marriage they view as unlawful. That means
individuals would have to return to the state where they got married to
get a divorce, but that can be a financial and personal hardship, since
many of these states have at least a 6-month minimum residency
requirement for divorce applicants.
Sometimes, the decision over whether to grant divorce is also subjective.
Last
year in Ohio, for example, where gay marriage was banned by
constitutional amendment, a Columbus judge granted two men a divorce.
Days later, another judge in the same court denied a divorce to a
lesbian couple on the grounds of jurisdiction, pointing to the state’s
ban on gay marriage.'Layers of cost'
Sommer
said her organization has seen an uptick in requests from courtrooms
across the country seeking additional briefs because they want to be
sure they’re taking the right steps. But that extra work keeps the meter
running for attorneys of couples trying to get divorced.
Satenberg
estimates that same-sex couples usually pay twice as much for divorces
as their heterosexual counterparts. Triple the price if children are
involved.
“By default, either one or both of the parents are not
the biological parent. And that brings in an entirely new set of legal
problems if the couple hasn’t taken the appropriate steps to secure
legal standing,” Satenberg said. “Some couples think, ‘Oh, we love each
other. We’re going to stay together forever.’ They don’t really think,
‘I should adopt my son, I should adopt my daughter.’”
Federal
income tax laws also can complicate matters. Same-sex couples splitting
property or assets may get zapped with a federal gift tax that doesn’t
apply to straight couples.
“Heterosexual marriage has been a part
of our society for as long as we’ve been a country, and therefore our
case law reflects those issues, and divorces and lawyers can navigate
through a pretty well defined area of law,” Satenberg said.
“But
when there are no clear answers, lawyers need to spend more time making
motions. They need to craft legal arguments where none have previously
existed because this is a new area of law.”Dottley got married in
California in October 2008 during the brief window when the state
allowed gay couples to wed. But when he started to seek a divorce in
2012, he found himself tangled in paperwork immediately.
“They
would repeatedly say, ‘Well, wait a minute. We have to create a whole
new form to incorporate same-sex marriages into this dissolution
process,” he said of his interaction with the legal system. “A good 50
percent of the delays were from the court not knowing how to handle
things.”
Dottley says he watched as many heterosexual friends
experienced a much smoother divorce process. "No else was going through
what I did at the time," he said.
Finding a lawyer familiar with
the specialized practice of gay divorce can be expensive, so it helps to
find someone sympathetic to the cause.
Ohio attorney Tom Addesa
has successfully handled several same-sex divorces in Ohio, and charges a
bargain $1,500 flat fee to handle uncontested same-sex divorce cases.
He said a straight couple might pay about $5,000 if he were to charge
his regular $250 hourly rate, but that a gay couple would pay far more
because of additional documents he would need to prepare.Gay
couples are also more likely to have their divorce applications
rejected, Addesa notes, which can lead to appeals, easily adding another
$10,000 to the bill depending on how much work that entails.
“Those are layers of cost that straight couples never have to worry about,” Addesa said.Thestigma of starting over
Elizabeth
Schwartz, a Miami attorney who works primarily with gay and lesbian
families, said it’s time for the nation to start addressing divorce laws
for same-sex couples. Otherwise, some people may start to disregard the
law altogether.
“What some couples are doing, and it’s really
frightening, is saying, ‘Well, I live in Florida, and marriage isn’t
recognized here anyway, so what’s the difference? I’m just going to get
married in this new relationship. The other one — who cares?’” she said.
“Well, I’m sorry, that’s bigamy.”
She tells those individuals
that if the relationship meant enough for them to get married in the
first place, then it was real enough to get out — legally.
“I feel
like I’m pissing on everybody’s marriage parade when I talk about
divorce, but you can’t, as a pragmatic, family lawyer, avoid it,” she
said. “Sometimes, a divorce is a beginning of a bright new chapter for
people.”

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